Furthermore, it is expected that the alcohol ignition interlock program will come into effect later this year, sometime in June. Against this backdrop, and from a prosecutorial perspective, I wish to briefly comment on the new legislative initiatives in the area of impaired driving as contained in Bill C-2, and then briefly comment on both the legal and practical issues that frequently arise in the prosecution of impaired driving cases.
Before I briefly comment on the initiatives of Bill C-2, I want to recognize and commend this committee and Parliament for the important work that has been done in attempting to protect Canadian citizens from drivers impaired by alcohol, drugs, or both in the manner consistent with the values enshrined in the charter.
Given the time allotted, I will touch upon only two initiatives contained in Bill C-2: the drug-impaired driving provision, and the provision that restricts evidence to the contrary.
It is an understatement to suggest that the drug-impairment driving enforcement provisions are long overdue. The lack of clear, effective responses to drug-impaired driving has been a longstanding concern. The new legislative provision will undoubtedly enhance the prosecution of drug-impaired drivers.
Although Bill C-2 permits video recording of test, in my view such video recording, where practical, should be conducted both at the roadside and later in the evaluation process during the drug-recognition test, as this is one way to import more objectivity into what will be argued as a subjective interpretation of the officer.
Furthermore, the audio and video recording of test for drug and alcohol impairment could be the most compelling evidence in the prosecution of an impaired driver, as it could clearly demonstrate the demeanour, behaviour, and condition of an accused person.
With respect to the provision that restricts evidence to the contrary, this amendment will undoubtedly limit or restrict the often-asserted defence of “I had only a couple of drinks”, or the Carter defence, but it does not eliminate the defence of bolus drinking that could occur before or after operating a motor vehicle. While the defence of bolus drinking is still possible, with the amendments the defence will be very difficult to establish.
There is a multitude of legal and practical issues that frequently arise in the prosecution of impaired driving cases; however, I'm going to focus on the following five: first, the effects of contextual definitions; second, police and crown training; third, blood alcohol concentration limit; fourth, random breath testing; and fifth, the necessity of a preamble.
With respect to the legal issues, there are phrases or words contained in the Criminal Code that are frequently litigated because they have been given contextual definitions by the courts. Examples include “care or control”, “forthwith”, and “as soon as practicable”. While these phrases or terms can cause uncertainty and unpredictability, they do provide a major flexibility that is consistent with the charter values. Thus, practically speaking, because of the contextual nature of these legal terms frequent litigation of the application of these terms to any given case should be expected.
With respect to police and crown training, I would like to make a few comments. The proclamation of the new Criminal Code provisions or amendments to the code related to impaired driving offences should be accompanied by funding sufficient to include adequate resources for enhanced police and crown training. Often an accused will challenge the police investigation, or lack thereof, which will include arguments involving insufficient grounds to make the demand, charter violations, and/or procedural mistakes made during the course of police investigation. Therefore continuous training in this area is necessary to ensure that investigations and prosecutions are conducted efficiently and effectively.
With respect to the issue of lowering the blood alcohol concentration limit from 0.8 milligrams of alcohol per 100 millilitres of blood to 0.05 milligrams, I'm not qualified to provide any meaningful commentary on this issue. It would appear to be a scientific inquiry examining the effects of impairment at 0.05 milligrams. However, I would add as a practical caveat to this issue that the common practice of the police in Nova Scotia is to lay charges only where blood alcohol exceeds or equals 0.10 milligrams. This is because of the presumed margin of error involved in the breathalyzer equipment.
In effect, then, the BAC level is elevated in practice, although it should be noted that in Nova Scotia, under provincial legislation, a BAC level of 0.05 milligrams empowers the police to temporarily suspend a driver's licence. Furthermore, a zero BAC level is statutorily mandated for newly licensed drivers.
I will now touch upon the issue of random breath testing. I do so not as a constitutional expert but as a practitioner in criminal law.
While random testing may be used in other countries, it would undoubtedly be challenged in Canada as a violation of the charter unless the courts found it to be a reasonable limit on the freedom of our citizens. In Canada, Parliament has set a statutory scheme whereby a screening test can be administered by the police merely upon entertaining a reasonable suspicion that alcohol is in a person's body--for example, the mere smell of alcohol on the driver's breath.
While the Supreme Court of Canada has upheld the constitutionality of this statutory scheme as a reasonable limit, it is arguable that the court may not uphold the statutory scheme that authorizes random breath testing where the police have no reason to suspect that the person is impaired. However, limiting the application of random breath testing to specific situations, such as motor vehicle accidents that cause death or bodily harm, may alleviate the charter concerns. Again, that is a matter best left with constitutional experts.
In any event, every aspect of any legislative scheme that authorizes random breath testing will invariably be subjected to detailed constitutional scrutiny.
Lastly, is it necessary to have a legislative preamble? While preambles can serve a useful purpose with new legislative schemes, if it is Parliament's intention that the amendments be judicially interpreted according to certain enumerated principles, it would be preferable to have these principles clearly and succinctly contained in amendments themselves.
That concludes my remarks, Mr. Chair. I'd be pleased to answer any questions.